***** UPDATE 10/18/2013 – In a case already full of twists and turns, presiding U.S. District Judge Alison J. Nathan, had harsh words for the attorneys representing Daniel Morel in his copyright infringement lawsuit against remaining counterclaim defendants AFP and Getty. According to reports the counterclaim plaintiff’s attorneys Barbara Hoffman and Joseph T. Baio have attempted to involve the court in their dispute over Hoffman’s access to the terms of the confidential settlement agreement that was recently reached with the Washington Post (see update below).

Hoffman and Baio each sent letters to the court asserting their position (see Hoffman Letter and Baio Letter) In her one page Order addressing the “letter dispute,” Judge Nathan admonished the lawyers for having “failed to meet and confer in a professional and reasonable manner before burdening the court with this dispute.” She then ordered them to meet and confer “for no less than one hour in an effort to come to a reasonable and professional agreement. Failure to abide by this requirement may result in sanctions.”

As can be read in the dueling letters (above) Hoffman, who earlier represented Mr. Morel on a contingency fee basis, has claimed a charging lien on any settlement agreements. Baio, whose law firm, Willkie Farr & Gallagher, LLP, now represents Morel expressed concern about confidentiality terms.

In two other late developments, Roger Netzer, of the same law firm entered an appearance of counsel of record for Mr. Morel on October 17th and Matthew R. Farley filed a motion for admissionpro hac vice (a legal term literally meaning “for this turn” and usually referring to a lawyer who has not been admitted to practice in that court but may be permitted to represent a party in that case).

The trial is still scheduled to begin on 11/12/2013.

****** UPDATE 10/3/2013 – This week the presiding judge dismissed claims against the Washington Post Co., one of the defendants in the copyright infringement case, after the parties reported they had reached an undisclosed settlement. In her two-page order, Judge Nathan dismissed the claims against the Post with prejudice and without costs, which means that neither party were responsible for paying the others’ costs or attorneys’ fees. The order also barred remaining defendants AFP and Getty from being able to deduct any payment of the Post settlement amount from any future award of damages to Morel.

The trial is scheduled to begin on 11/12/2013.

**********************

New York District Judge Alison J. Nathan has ruled (AFP-Morel Decision 01-14-13) that news service Agence France Presse (AFP) and The Washington Post Co (the Post) infringed upon photojournalist Daniel Morel’s copyright by their unauthorized use of his photos of the 2010 Haiti earthquake aftermath.

Mr. Morel had uploaded the photos in question to TwitPic.com by linking them to his Twitter account because the country-wide devastation to electricity and Internet connections forced him to use this more public method. Further complicating the matter, shortly after Morel posted his pictures online they were reposted to the Twitter account of Lisandro Suero, who tweeted that he had exclusive photographs of the earthquakes. A number of agencies including AFP then credited Suero for the photos.

In the original Complaint, filed in 2010 AFP sought a declaratory judgment that it had not infringed upon Morel’s copyrights and included defamation claims against him as well. Morel then counter-claimed that AFP, the Post, Getty and other news organizations had distributed his images without his permission.

In its answer AFP argued that it was a third-party beneficiary of the license agreement between Morel and Twitter, by claiming that Twitter’s Terms of Service (TOS) granted it a license as one of Twitter’s “other users.”

“Based on the evidence presented to the Court the Twitter TOS do not provide AFP with an excuse for its conduct in this case,” the Court noted in finding that “The Twitter [terms of service] provide that users retain their rights to the content they post — with the exception of the license granted to Twitter and its partners — rebutting AFP’s claim that Twitter intended to confer a license on it to sell Morel’s photographs.”

In making its ruling the court observed that “the dispute between the parties with regard to liability for direct infringement turns on Counterclaim Defendants’ affirmative defenses, namely their claims that (1) by posting the Photos-at-Issue on TwitPic/Twitter, Morel granted them a license, (2) Getty is entitled to the benefit of a DMCA safe-harbor, and (3) Getty has not engaged in volitional conduct sufficient to impose liability.”

In an ironic twist this recent decision comes two years to the date after District Judge William H. Pauley III issued his Decision denying AFP’s motion to dismiss Morel’s counter-claim suit. In that earlier proceeding Judge Pauley also concluded that the express language of the Twitter and TwitPic TOS did not provide an express license that protected AFP.

In her well-reasoned 58 page decision Judge Nathan granted Morel partial summary judgment ruling that “AFP and the Post are liable for copyright infringement as to the Photos-at-Issue.” But the court rejected his “arguments regarding the scope of statutory damages available under the Copyright Act and DMCA.” The judge also denied motions for summary judgment with regard to whether the infringements were willful; as well as the “claims for contributory and vicarious copyright liability.”

Because there remain genuine issues of fact the Court denied Mr. Morel’s claim for summary judgment regarding DMCA violations and also limited his recovery under that Act should he prevail at trial. After careful analysis the Court also concluded “that any awards of statutory damages against AFP or Getty may not be multiplied based on the number of infringers with whom AFP or Getty is jointly and severally liable. Rather, AFP and Getty are, at most, each liable for a single statutory damages award per work infringed.”

Judge Nathan further rebuked AFP by stating “in making its arguments on summary judgment AFP wholly ignores those portions of the Twitter TOS that are directly contrary to its position, particularly those portions stating that ‘you retain your rights to any Content you submit, post or display’ and ‘what’s yours is yours – you own your content.’”

This case serves as a cautionary tale about just how important it is to read and understand any TOS before clicking “agree.” These were the Twitpic TOS at the time that Morel uploaded his images: “by submitting Content to Twitpic, you hereby grant Twitpic a worldwide, non-exclusive, royalty-free, sublicenseable and transferable license to use, reproduce, distribute, prepare derivative works of, display, and perform the Content in connection with the Service and Twitpic’s (and its successors’ and affiliates’) business, including without limitation for promoting and redistributing part or all of the Service (and derivative works thereof) in any media formats and through any media channels.” You should also read the current TOS which have been substantially modified, due in large part to this case.

Morel settled with counter-claim defendants ABC, CNN and CBS in 2011. A conference is set for February 1, 2013, at 4:00 pm to discuss further scheduling of this matter.

Update: Morel’s attorneys have released a press release, stating in part that “Although Judge Nathan rejected Morel’s legal theory entitling him to as much as one hundred twenty million dollars in statutory damages, Morel still hopes to win millions in damages following trial.”

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